While the United Nations charter guarantees "the sovereign equality of all its Members," evolving legal doctrines dealing with genocide, war crimes, and crimes against humanity are leading to the theory that the national sovereignty is not absolute, but is qualified by peremptory norms determined by jus cogens or "compelling law." Despite persistent opposition from Sri Lanka, based on sovereignty claims, to international attempts to investigate alleged killing of more than 40,000 of Tamil civilians, the egregious nature of these crimes is unlikely to disappear from the consciousness of the world community and the Tamils affected by war. Until the issue is taken up at the world courts, expatriate Tamils should seek to assert jus cogens based cause of action in the courts of Europe and elsewhere to bring Sri Lanka officials complicit in war-crimes to justice.
Alleged killing of Tamil civilians, estimates ranging from 40,000 to 70,000 in the first five months of 2009, rank among the most egregious crimes against humanity committed by a State against its own civilians in the recent history. Many international NGOs and United Nations officials have called for international investigations to ascertain if the protagonists have committed war-crimes.
Customary international law are those aspects of international law that derive from custom, and laws of war were long a matter of customary law before they were codified in the Hague Conventions of 1899 and 1907, Geneva Conventions, and other treaties.
While a pragmatic view of the international law dictates that "state consent plays an important role in maintaining an international legal order," the body of jus cogens, which does not permit derogation, represents a dramatic limitation to sovereign authority, according to legal scholars.
Jus cogens refers to the legal status that certain international crimes reach, whereas obligato erga omnes pertains to the legal implications arising out of a crime characterized as jus cogens. With respect to the consequences of recognizing an international crime as jus cogens, the threshold question is whether such as a status places obligations erga omnes upon states or merely gives a right to prosecute perpetrators of such crimes. While debate still exists on which norms fall within the category of jus cogens norms, there is broad agreement on the following:
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War crimes, genocide, crimes against humanity, and prohibitions on slavery are considered jus cogens norms; and
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Implications of jus cogens are those of duty and not of optional rights; otherwise jus cogens would not constitute a peremptory norm.
However, United Nation’s Rome Statute for the ICC provides safeguard to support a nation’s sovereignty by mandating the principle of complementarity. This doctrine renders a case inadmissible before the ICC, if it is currently under investigation by a state with jurisdiction over it.
The concept of complementarity, however, allows for ICC jurisdiction in situations when the state is unable or unwilling to proceed with an investigation or where the state investigation is conducted in bad faith such as when it is used to shield the person from criminal responsibility.
While for political expediency the UN (and US) appear willing to wait until Sri Lanka’s dud commission exposes the inevitable failure of its investigations, individual European nations, such as Switzerland, which have incorporated jus cogens norms into their own jurisprudence, can allow concurrent legal action against Sri Lankan nationals, as Sri Lanka satisfies both of the two requisite elements that can negate the complementarity requirement:
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Unwillingness: Despite the establishment of a "lesson learnt" commission, high level officials in Sri Lanka have made statements that Sri Lanka will never investigate war crimes; and
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Inability: High level military and political officials including Sri Lanka’s President have been accused of complicity in war-crimes providing validity to the presumption that commission will not be able to carry out an objective investigation against Rajapaksa brothers.
Further, unlike in US and South Asian countries, where jurisprudence excludes moral rights, in Germany, France and a few other European countries, statutes incorporating moral rights may provide additional legal opportunities to bring violators of human rights to justice.
Legal challenges might appear complex and difficult, but the challenges are not insurmountable. Resources and legal capacity of diaspora Tamils should be effectively used to hold Sri Lanka accountable for the crimes committed against Tamils.
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